|LX REGULAR SESSION OF THE ADMINISTRATIVE TRIBUNAL
OF THE ORGANIZATION OF AMERICAN STATES
14 December 2012
Mariana Herrera v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,
Meeting in the city of Buenos Aires, Argentina, and composed of Judges Homero Máximo Bibiloni (President), Suzie D’Auvergne (Vice President), Alma Montenegro de Fletcher, Héctor E. Arce, Magali Rojas, and Andre M. Surena, has before it for judgment the proceedings in Complaint 295 filed by the complainant, Mariana Herrera, against the Secretary General of the Organization of American States.
The complainant represented herself, and the Secretary General was represented by Kenneth Frankel, William Berenson, Rubén Farje, Lorena Pérez, and Rubén Rudolph, all attorneys in the Department of Legal Services (DLS) of the General Secretariat of the Organization of American States (GS/OAS).
Pursuant to Article 50 of the Rules of Procedure of the Administrative Tribunal, Judge Héctor Arce Zaconeta was designated as first opining judge.
The complainant, Mariana Herrera, a Specialist in the Project Management Support Section of the Department of Planning and Evaluation (DPE), filed her complaint on September 13, 2012, requesting the Tribunal to examine the facts related to the audit of the post she occupied in 2011, conducted by Micheline Mackin, and to determine the appropriate classification for it. The complainant alleges noncompliance with the Staff Rules as well as an erroneous and insufficient classification resulting from a faulty post audit (which decided that the complainant’s post should remain at its original P-2 level) and an abridgement or denial of due process. Accordingly, the complainant requests that the Administrative Tribunal (pp. 12 and 13):
Examine the facts related to the classification of the post she occupies and determine the appropriate classification using the classification standards and methods established in resolution AG/RES. 1319 (XXV-O/95).
Should the Tribunal decide that the functions the complainant has performed since before the reclassification was requested correspond to the P-3 grade, that the classification be made effective retroactively as of 2009, with payment of the corresponding interest and contributions to benefit funds or, barring that, that she be paid the special duties allowance (the difference between the P-2 and P-3 grade salaries) as of the date on which her reclassification request was accepted.
That the respondent be ordered to pay the costs, including legal fees, incurred by the complainant in filing her complaint.
On September 13, 2012, the Tribunal Secretary forwarded the complaint to the respondent.
On October 1, 2012, the President of the Administrative Tribunal, Judge Homero Máximo Bibiloni, by the powers vested in him by the Statute of the Tribunal, ordered a new audit of the complainant’s post and, to that end, appointed Héctor Rondón Fuentes as the expert auditor for this case. On the same date, the parties were informed of the dates set for the audit interviews (p.122).
On October 5, 2012, the Secretary General’s representative, Lorena Pérez, presented a brief asking the Tribunal to stipulate that, when the new audit was conducted under that complaint, account be taken of the same documentation as that considered during the initial audit carried out by Ms. Mackin in 2011 (pp. 133-134).
On October 15, 2012, the respondent submitted his answer to the complaint (p. 137). In said answer, the Secretary General alleged that he had complied in good faith, insofar as possible, in time and proper form, with all the complainant’s petitions, recognized all her rights, and accorded her all regulatory due process guarantees during the hearing and reconsideration procedures prior to the filing of the complaint (p. 143). The respondent requests the Tribunal to deny the complainant’s petitions for reclassification of the post she occupies, since the settlement of a dispute involving the reclassification level of a post requires a highly precise and technical analysis of the tasks performed and of the United Nations classification system. Specifically, the respondent requests the following of the Tribunal (p. 167):
That the complaint be accepted as duly presented and answered, in time and form;
That all the evidence presented as appendixes to the answer be accepted and be given due consideration;
That the report of the post audit conducted on June 24, 2011, (pp. 91 and 92), which recommends that the classification of the post occupied by the complainant remain at the P-2 level, be rescinded;
That the complainant’s request to have the DHR correct the supposed errors and omissions committed by the auditor, Ms. Mackin, be dismissed, since, if there are any, the only way to address them would be through a new audit of the post conducted by an independent expert;
That the new auditor takes into account the same documentation as that considered in the initial audit conducted by Ms. Mackin;
That, absent any clear and convincing evidence of corruption, misconduct, or other material error on the part of the expert designated by the President of the Tribunal to conduct the new audit of the post occupied by the complainant, the Tribunal confirm the results of the new audit as final and binding on the parties, in accordance with Article VII.4 of the Statute of the Tribunal and Article 21 of its Rules of Procedure; and
In the event the post held by the complainant is classified at a grade lower than P-2 as a result of the new audit, that the complainant be ordered to reimburse the General Secretariat for any excess payment she received for a grade level higher than the post she holds.
On October 15, 2012, the Tribunal Secretary forwarded the answer to the complainant (p. 237).
On October 17, the Tribunal Secretariat received a packet of information containing organizational charts, comparable job descriptions, and other background materials on the case, which the DHR had been asked to provide at the request of the auditor, to enable him to better perform his work (pp. 239-311).
On October 19, 2012, auditor Héctor Rondón interviewed the complainant at GS/OAS headquarters.
On October 22, 2012, the auditor interviewed Ricardo Graziano, Director of the Department of Planning and Evaluation, the complainant’s supervisor.
On October 25, 2012, the complainant asked for an extension for filing a replication to the respondent’s answer (p. 315).
On October 26, 2012, the parties were notified that the President of the Tribunal had denied the complainant’s request for an extension on the basis of the President’s position that requests that might delay proceedings should not be responded to favorably without just cause.
On October 31, 2012, the complainant submitted her written observations to the respondent’s answer (replication).
On November 1, 2012, the Tribunal Secretary forwarded the replication to the respondent.
On November 7, 2012, the auditor, Héctor Rondón, submitted his report with the audit results, recommending that the complainant’s post be reclassified from the P-2 to the P-3 level (pp. 364-366). On the same day, the Tribunal Secretary forwarded the report to the parties and gave them a period of 10 days to make observations on its content (p. 367).
On November 16, 2012, the respondent presented his comments on the complainant’s observations (rejoinder).
On November 20, 2012, the Tribunal Secretary forwarded the rejoinder to the complainant (p. 388).
On November 19, 2012, the respondent submitted observations on Mr. Rondón’s audit report (p. 390). The respondent did not raise any objections to the content of the report and asked the Tribunal, in determining the date on which the reclassification would take effect, to use the criterion followed for cases 288 and 289, in which the reclassification was retroactive to the date on which the procedure for a hearing with the Secretary General began, as established in Chapter XII of the Staff Rules. No observations on the audit report were received from the complainant.
On November 20, 2012, the Tribunal Secretary transmitted the respondent’s observations to the complainant and notified the parties that the case had been entered on the docket of cases to be considered by the Tribunal at its next session. (p. 391).
I. STATEMENT OF FACTS
1. On December 4, 2009, the Director of the Department of Planning and Evaluation, Ricardo Graziano, in a memorandum sent to the then Director of the Department of Human Resources, Rosa María Barreiro, submitted a request for a classification review of the post held by the complainant (then at the P-2 level), along with the respective forms (p. 23).
2. On March 31, 2010, the complainant’s supervisor, Yacsire Cutler, Chief of the Project Management Support Section of the DPE, in an e-mail to the DHR, requested information on the steps taken regarding the requests for a classification review of the complainant’s post and the posts of two other DPE specialists (pp. 31 and 32). The complainant says (p. 2) that this communication was sent after more than 90 days had elapsed without receiving any opinion from the DHR on the matter, in violation of Rule 102.3 (c) (iii) of the Staff Rules, which states: “Within 90 days following its receipt of those documents, the Department of Human Resources shall issue an opinion on the possible consequences of the proposed assignment of duties and the requisites for making the assignment effective.”
3. On the same date, March 31, 2010, María Cristina García of the DHR reported that interviews were scheduled to be held the week of May 17, 2012, and that information on the exact dates and times would be transmitted in due course (p. 31).
4. On an unknown date (a short while after the e-mail dated March 31, 2010, according to the respondent on page 146), the then Director of the DHR, Rosa María Barreiro, was informed that, in view of the budgetary constraints faced by the Organization at that time, a decision had been made to suspend the post reclassification request process in the GS/OAS.
5. On May 7, 2010, the DHR Director informed the DPE Director of the current budgetary constraints and that her office had therefore put post reclassification requests on hold until further notice. Consequently, the DHR Director asked Mr. Graziano to inform the staff members of the situation and withdraw the new functions that led to their requests for classification reviews of their posts (p. 36). On the same date, Mr. Graziano answered Mrs. Barreiro, informing her that the functions of said complainants (Mariana Herrera, Carla Sorani, and Denise Goolsarran) had always been the same, that their posts were financed by specific funds, and that he was not aware that the budgetary constraints applied to those funds (p. 35).
6. On May 13, 2010, the DHR Director answered the DPE Director’s correspondence referred to in the preceding paragraph, explaining that all post classification requests had been put “on hold” until further notice regardless of the source of financing and that this was an institution-wide measure that affected the Organization as a whole and not just some funds. She also told him that post classification review requests presented did indeed refer to a change of functions and that item 3 of the post classification review form identified those functions that had been changed, added, and/or eliminated, which she considered to be the reason for the request. She reiterated to Mr. Graziano that he should withdraw the new functions in order to avoid any financial and legal implications and any expectations on the part of the staff members (p. 34).
7. On May 18, 2010, Mr. Graziano answered the communication referred to in the preceding paragraph, indicating that he understood the context in which the decision had been made to suspend post classifications for the moment but added that withdrawing the new functions from the staff members was not feasible because their former functions corresponded to positions that had been eliminated (in the DPE or other departments) or that had originally been established in a very generic sense. The DPE Director said: “In other words, if we returned to the former functions, the Department could not function.” He concluded by saying that he would keep things as they were with respect to functions and would wait for new developments in that regard (p. 33).
8. On September 8, 2010, the complainant’s supervisor, Yacsire Cutler, sent an e-mail to Cristina García of the DHR to request information on the status of the post classification requests of the DPE staff members, inquiring about the dates scheduled for the post audits (p. 39).
9. On April 26, 2011, Yacsire Cutler contacted the DHR once again to request information on the dates scheduled for the audits of the DPE staff members, recalling that the necessary documents to begin the post reclassification process had been sent to the DHR in the last quarter of 2009 (p. 40).
10. On April 28, 2011, the DHR Director, María Antonieta Gaxiola, answered Mrs. Cutler saying that the audits were scheduled for the fourth week of June 2011 and that she would soon inform her of the precise dates (p. 40).
11. On June 6, 2011, the DHR, in memorandum DHR/252/11, informed the DPE Director of the dates and times of the interviews to be held in connection with the audits of the complainant’s post and the posts of the two other DPE staff members (p. 43).
12. On June 16, 2011, the General Secretariat contracted the services of the expert Micheline Mackin to audit 29 posts, including the complainant’s (p. 148).
13. On June 20, 2011, auditor Mackin interviewed the complainant and the DPE Director, Ricardo Graziano.
14. On September 13, 2011, the DHR, in memorandum DHR/428/11, informed the complainant and the DPE Director of the results of the audit of the former’s post, indicating that the auditor, Ms. Mackin, had recommended that the classification of the post occupied by the complainant be maintained at the P-2 level. It said that that classification level had been approved by the OAS Secretary General and, in accordance with Staff Rule 102.3 (g), was effective as of September 8, 2011 (p. 45).
15. On September 14, 2011, the complainant sent an e-mail to Nubia Thornton of the DHR requesting auditor Mackin’s document (i.e., the audit report), which might explain the reasons behind her recommendation to keep the complainant’s post at the P-2 level (p. 47).
16. On September 14, 2011, the DHR Director informed the DPE Director that, with regard to his request to read the reports of the post audits of the staff members in his department (Herrera, Sorani, and Goolsarran), she had asked Mrs. Thornton to contact him as soon as possible to make an appointment for him to read said reports, indicating that “in light of the nature and the confidentiality of the reports in question, they cannot be reproduced or distributed” (p. 51).
17. On September 15, 2011, Mrs. Thornton sent the complainant an e-mail proposing a date and time for a meeting in connection with the complainant’s request to read the audit report. The Tribunal observes that, according to page 47 of the case file, the complainant asked for the document itself and not to read it. In the same e-mail, Mrs. Thornton told the complainant that “in light of the nature and the confidentiality of the report in question, it cannot be reproduced or distributed” (p. 48).
18. On September 16, 2011, the complainant went to Mrs. Thornton’s office, where she had access to the audit report and took notes on it for 30 minutes. A copy of the handwritten notes taken by the complainant during that meeting may be found on page 49 of the case file.
19. On September 21, 2011, the DPE Director sent an e-mail to the DHR Director, as he expected that the staff members of his department (Herrera, Sorani, and Goolsarran) might file appeals because their posts were not reclassified to a higher level (p. 50).
20. On September 22, 2011, the complainant requested a hearing with the Secretary General pursuant to Article 64 of the General Standards to Govern the Operations of the General Secretariat of the OAS and Rules l02.4, 112.1, and 112.2 of the Staff Rules. On that occasion, the complainant reiterated her request for a copy of Ms. Mackin’s audit report (p. 53).
21. On October 17, 2011, the OAS Secretary General, José Miguel Insulza, sent the complainant letter DHR/486/11, in which he assigned Sergio Martínez as Hearing Officer to conduct a more exhaustive review of the subject matter and make appropriate recommendations for disposition of the matter (p. 54). About the request for a copy of the audit report, the Secretary General said:
“With regard to your request for a copy of the audit report for your position, I wish to inform you that, as indicated earlier and considering the nature and confidentiality of said report, it cannot be reproduced or distributed. However, as you already know, you may have access to said report in the Department of Human Resources to review and read it.”
22. On October 20, 2011, the complainant accepted the Secretary General’s decision and reiterated her request for a copy of the audit report on the post she occupied, stating that “I can understand that the document is confidential; however, the information it contains deals with my duties and it should be available to me for the purposes I decide” (p. 55).
23. The hearing was held on November 1, 2011. On that occasion, Sergio Martínez asked the complainant to provide him, within two weeks, with a document explaining why she did not agree with the results of the audit of her post.
24. On November 10, 2011, the complainant sent the Hearing Officer the document explaining the reasons for her disagreement with the audit results (pp. 56-58).
25. The Hearing Officer issued his report on December 16, 2011 (pp. 212-215), recommending to the Secretary General that the DHR be instructed to contract the services of an expert to conduct a new audit of the complainant’s post.
26. On December 22, 2011, in letter DHR/687/11, the Secretary General informed the complainant that he had accepted the Hearing Officer’s recommendation to contract the services of an external classifier different from the one who had conducted the previous audit to conduct a new audit of the post she occupied. She was told that she would be informed of the details of the process in the near future (p. 59).
27. On December 23, 2011, the DHR Director informed the complainant that the current date marked the beginning of the 15-day period established by Staff Rule 112.3 (f) for her to respond to the Secretary General’s proposal for a new post audit pursuant to Staff Rule 102.4 (a) (p.60).
Rule 102.4 (a) of the Staff Rules reads as follows:
“A staff member who is dissatisfied with the classification of his/her post resulting from a review made in accordance with Rule 102.3, above, may be entitled to have his/her post reviewed again by a committee of trained specialists appointed by the Secretary General or an external classification specialist chosen from a panel selected with the participation of the Staff Committee, if the staff member and the Secretary General so agree. Such an agreement may be reached either without resort to the reconsideration procedure referred to in Chapter XII of these Rules or under a conciliation arranged by the Joint Committee on Reconsideration pursuant to Rule 112.5(g). The agreement shall provide that the recommendations of the external specialist or the committee of trained specialists (as the case may be) are final and binding on all parties and that the staff member relinquishes the right to any further recourse in the matter. The external specialist or the committee of specialists (as the case may be) shall be instructed to limit itself to issuing a technical opinion on the classification of the post.”
28. On January 5, 2012, the complainant rejected the proposal for a new audit pursuant to Staff Rule 102.4 (a) and submitted a reconsideration request aimed at modifying the measure taken by the General Secretariat on September 13, 2011, to approve the P-2 classification level recommended by the auditor, Ms. Mackin (p. 62). On that occasion, the complainant added:
“Moreover, I reiterate the request I made earlier for access to the original version of the audit report and copies of it and to all communications between the Department of Human Resources and the auditor that were related to the audit process and results, in order to be apprised of the information the auditor used to reach her conclusion.”
With regard to the complainant’s request to have access to all communications related to her post audit between the DHR and the auditor, Ms. Mackin, the respondent said in his reply that that was the first time the DHR had received that request (p. 152).
29. On January 24, 2012, the DHR Director informed the complainant that, in response to her communication of January 5, 2012, her case had been referred to the Joint Advisory Committee on Reconsideration, and that César Parga and Michael Thomas had been appointed as principal members of the Committee representing the GS/OAS and the Staff Association, respectively, along with their alternates (p. 64).
30. On the same day, January 24, 2012, the DHR Director, in memorandum DHR/067/12, sent Messrs. Parga and Thomas the pertinent documentation on 11 reconsideration requests presented to the Secretary General that month, including the complainant’s (pp. 216 and 217).
31. On February 1, 2012, César Parga, the principal member appointed by the GS/OAS, informed the DHR that María Teresa Mellenkamp, a GS/OAS staff member, would serve as Chair of the Reconsideration Committee for the 11 cases presented, including the complainant’s (p.218).
32. On February 6, 2012, Mr. Parga informed the DHR that, following a meeting with Mrs. Mellenkamp to discuss the Committee’s work plan, she had told them that, due to work commitments and upcoming trips, she would not be able to serve as Chair of the Reconsideration Committee. Mr. Parga said that they would notify the DHR as soon as they had selected someone else to serve (p. 219).
33. On February 9, 2012, Michael Thomas, the principal member appointed by the Staff Association, informed the DHR that Ms. Kim Osborne, a GS/OAS staff member, had agreed to serve as Chair of the Reconsideration Committee (p.220).
34. On February 15, 2012, Mr. Thomas asked the DHR to inform the 11 staff members whose cases would be examined by the Reconsideration Committee (including the complainant) that the Chair of the Committee had been selected and that the Committee would begin to review the reconsideration requests on Tuesday, February 21. The DHR replied in an e-mail of the same date that it would do so (p. 221).
35. On February 16, 2012, the complainant sent a message to the members of the Reconsideration Committee asking them to inform her of the name of the person selected a Chair of the Committee so that she could make her observations on the case (p. 66).
36. On February 17, 2012, the DHR Director informed the complainant, in memorandum DHR/124/12, that the Joint Advisory Committee on Reconsideration had designated Kim Hurtault-Osborne as Chair of that Committee, and that the Committee would begin to review the requests received on February 21, 2012. Likewise, the complainant was told that she would be notified as soon as the Secretary General received the Committee’s report, in keeping with Staff Rule 112.7 (i) (p.67).
37. On February 27, 2012, the complainant wrote to the Reconsideration Committee to explain why she had requested a hearing with the Secretary General and had decided to reject the Secretary General’s proposal for a new audit (pp. 68-71).
38. On April 16, 2012, Mrs. Osborne informed the DHR Director that the alternate representative of the GS/OAS, Ms. María Fernanda Trigo, would replace Mr. Parga in view of his health, and that that the final report of the Reconsideration Committee would be submitted on May 18, 2012; she also asked for instructions on how to proceed in the event the delay in submitting the report was unacceptable to some petitioners (p. 222).
39. On April 19, 2012, the DHR Director, in memorandum DHR/235/12, informed Mrs. Osborne that, based on Staff Rule 112.9 and considering that the Committee had responded in a timely fashion to the new scenario in order to meet deadlines, the Reconsideration Committee could submit its final report by no later than May 18, 2012, and that the DHR would notify the 11 petitioners of the new date (p. 223).
Rule 112.9 establishes the following:
“Failure of the Secretary General to comply with any of the time limits set forth in this Chapter XII shall not provide grounds for an allegation of the denial of due process or give rise to any right of indemnity, provided that the Secretary General has made a good-faith effort, through due diligence, to comply with the time limits in the Chapter. Nonetheless, the failure of the Secretary General to respond within the time periods set out in these Rules shall not prevent a staff member who has fully complied with his/her obligations within those time periods from pursuing his/her grievance through the administrative and adjudicatory process provided herein.”
40. On April 19, 2012, the DHR sent the complainant memorandum DHR/239/12, informing her that, owing to César Parga’s poor health, the Reconsideration Committee would delay the submission of its report to the Secretary General on her case until May 18, 2012. The complainant was also told in that memorandum that, in accordance with Staff Rule 112.9, she had the option of taking her case directly to the OAS Administrative Tribunal without waiting for the conclusion of the report or the corresponding decision by the Secretary General (p. 72).
41. On May 22, 2012, the DHR, in memorandum DHR/318/12, informed the complainant that the Secretary General had received the report of the Reconsideration Committee (pp. 75-83) on May 18, 2012, and that she would be notified of his decision in due course (p. 73).
42. The Reconsideration Committee made the following recommendations in its report (p. 83):
In the interest of transparency and due process, that the Secretary General instruct the DHR to provide Mrs. Herrera with a copy of the audit report corresponding to the post she occupies.
That the Secretary General instruct the Department of Human Resources to carefully review the audit report submitted by Ms. Mackin, within a period of 30 days, in order to determine whether errors or omissions were made by the expert in applying the UN classification standards, taking into account the arguments presented by Mrs. Herrera throughout the hearing and reconsideration process, as well as the minimum requirements for the post set out in the job description.
Should the review of the audit report by the DHR reveal errors that would result in the post being reclassified to a higher grade, that the Secretary General instruct the DHR to reclassify the post accordingly and to pay Mrs. Herrera the corresponding special duties allowance retroactively, pursuant to the Staff Rules.
Should the DHR not have the technical ability to carry out the audit report review, or should Mrs. Herrera not be satisfied with the result of that review, that both the Secretary General and Mrs. Herrera ask the Administrative Tribunal for a new post audit, in accordance with Chapter VII.4 of the Statute of the Tribunal.
43. On June 18, 2012, Mr. Rodrigo Torres of the DHR sent an e-mail to the complainant to propose holding a meeting on the morning of the following day to discuss the complainant’s claim regarding the audit of the post she occupied (p. 74).
44. On June 19, 2012, the complainant held a meeting with the DHR Director and with Rubén Farje of the DLS, at which she received the Reconsideration Committee’s report (pp. 75-83). According to the complainant (p. 5), she was informed verbally about the possibility of reaching an agreement between the parties, consisting of a second audit, and she was asked to indicate, preferably within 24 hours, whether she accepted or rejected said agreement. Following the meeting, Mr. Farje sent the complainant a proposed agreement (pp. 85 and 86).
45. On June 20, 2012, the complainant sent an e-mail to the DHR Director pointing out that the time period for the Secretary General’s final decision had expired and that, if she was to take an informed decision about the agreement proposed to her the previous day, she needed a final decision from the Secretary General and a copy of the audit report (p. 87).
46. On June 21, 2012, Mr. Farje of the DLS replied to the complainant (pp. 89 and 90) and attached a copy of Ms. Mackin’s audit report (pp. 91 and 92). The complainant maintains that, to the best of her knowledge and belief, the copy of the audit report given to her by Mr. Farje was not the same copy as the one she was allowed to see on September 16, 2012, in Nubia Thornton’s office (see paragraph 18 above).
With regard for the deadline for the Secretary General to take a final decision, Mr. Farje said that they were still in compliance with the deadlines and that “while it can be argued that the Secretary General has not yet taken a final decision, he has adopted several of the recommendations made by the Reconsideration Committee.” (p. 90).
47. On June 22, 2012, the DHR Director, in memorandum DHR/447/12, informed the complainant of the decision taken by the General Secretariat after its consideration of the Reconsideration Committee’s report. Specifically, those decisions were the following: (1) to adopt the Committee’s recommendation to provide the complainant with a copy of the audit report for her post, which had been done the previous day; and (2) to present a proposal for a new audit, to be conducted by an expert different from the previous one, informing the complainant that that would afford an opportunity for the new expert to correct any omissions or errors in the classification process and that the results of the new audit would be final and binding on the parties. The complainant was also told that the results of that new audit would be transmitted directly and simultaneously to the complainant and the Secretary General. Further in that memorandum, the complainant was asked to respond to the proposed agreement by no later than June 28, 2012, and was told that, as far as the General Secretariat was concerned, she had already exhausted the necessary prior administrative procedures for recourse to the OAS Administrative Tribunal (pp. 93 and 94).
48. On June 28, 2012, the complainant wrote to the DHR Director to inform her that she was unable to meet the Director’s request for an answer by that date, in view of the time and effort needed to consider the offer and the information related to the case (p. 95).
49. On July 2, 2012, Rodrigo Torres of the DHR sent the complainant an e-mail to inform her that the GS/OAS had extended to July 6, 2012, the deadline for consideration of the proposal made by the GS/OAS in its memorandum of June 22 (p. 228). On the same date, Mr. Torres received an automatic reply indicating that the complainant would return to her office on Monday, August 6 (p. 231).
50. On September 13, 2012, Mrs. Herrera filled her complaint before the OAS Administrative Tribunal against the Secretary General.
II. FACTUAL AND LEGAL CONSIDERATIONS
Exhaustion of administrative remedies
Pursuant to Article VI.1.a of the Statute of the Administrative Tribunal, a complaint is admissible when the person concerned has exhausted the procedures provided in the General Standards or in other existing provisions and the Secretary General has made the corresponding final decision. Accordingly, in keeping with Article 102.4 of the Staff Rules, the procedures to be exhausted by a staff member who disagrees with the classification of his or her post after it is audited are the hearing and reconsideration procedures provided for in Chapter XII of the Staff Rules.
The case file shows that the complainant exhausted the administrative procedures required for filing her complaint with this Tribunal, as indicated in paragraphs 20 to 49 of Section I above of this judgment, and this complaint may therefore be admitted.
B. Audit results
This Tribunal has acted in accordance with Article VII.4 of the Statute of the Administrative Tribunal, which establishes:
“In disputes over the classification level of a post, the President of the Tribunal shall, at the request of a party or at his own discretion, request an audit of the post in question from a qualified independent job classification expert selected in accordance with the Rules of Procedure, and, absent clear and convincing evidence of corruption or misconduct on the part of the classification expert, the Tribunal shall confirm the results of the audit as final and binding on the parties.”
In view of the parties’ agreement to submit the dispute on the classification of the complainant’s post to an independent expert, it should be mentioned that, under the applicable rules, when the Tribunal receives the audit report from the appointed expert, the Tribunal simply determines if said expert acted within the parameters established in Article 21 of the Rules of Procedure, considering whether there was clear and convincing evidence of corruption or misconduct or other fundamental error that would warrant revocation of the expert’s decision. In the audit corresponding to this complaint, there was no clear and convincing evidence of corruption or misconduct or other fundamental error, and consequently reason does not exist for this Tribunal to reject the expert’s opinion on the classification level it has determined for the complainant’s post.
According with the aforementioned, this Tribunal confirms that the results of the audit conducted by Héctor Rondón Fuentes, which appear on pages 364 to 366 of the case file, are final and binding on the parties.
C. Retroactivity in the post reclassification
In the instant case, the OAS Administrative Tribunal considers that the complainant’s post reclassification should take effect as of the date on which she formally asked the General Secretariat for an audit of her post, namely, December 4, 2009, with due support from the Director of the Department of Planning and Evaluation, Ricardo Graziano, who certified at that time, when he sent the Director of Human Resources the reclassification request form and the pertinent documentation (p. 23), that a new job description for the complainant’s post was needed because of the higher-level functions she was performing.
D. Conduct of the General Secretariat during the prior administrative procedures
D.1 Complainant’s allegation regarding a possible substitution of the audit report by the DHR
According to pages 319 and 357 of the case file, the complainant asserts that, to the best of her knowledge and belief, the copy of the audit report given to her by Mr. Farje of the DLS on June 21, 2012, was not the same copy as the one she was allowed to see on September 16, 2011, in the office of Nubia Thornton, a DHR specialist.
The complainant presents as evidence the notes she declares she took during the meeting with Mrs. Thornton on September 16, 2011 (pp. 353-356), claiming that at that meeting she endeavored to copy the beginning of every paragraph of the document presented, and that she was surprised that the audit report given to her by Mr. Farje nine months later included two paragraphs and a heading that she had not seen initially and that did not appear in her notes (p. 357).
The respondent alleges that the audit report to which the complainant had access to take notes on September 16, 2011, was indeed the copy provided to her on June 21, 2012 (pp. 91 and 92), as proven in an e-mail sent by auditor Mackin on November 14, 2012, in which the auditor confirms that the report attached for verification by the DLS (pp. 386 and 387) was the same as the one she had prepared and sent to the DHR (p. 372). Likewise, the respondent contends that the handwritten notes that the complainant supposedly took during the meeting with Mrs. Thornton in September 2011 do not contribute anything to the case (p. 375), since comparisons show that the notes taken by the complainant in support of her claim (p. 49) are almost identical to the contents of the audit report provided to her by the DLS on June 21, 2012 (pp. 91 and 92).
Given the allegations made by each of the parties, the Tribunal is not in a position to rule in this regard because of insufficient evidence. On the one hand, it cannot be proven that the notes submitted by the complainant were actually taken at the meeting on September 16, 2011, nor can it be denied that the complainant may have failed to copy, by error or confusion, part of the information contained in the report presented by Mrs. Thornton. On the other hand, it cannot be determined from the case file whether the file sent to Ms. Mackin by e-mail to verify its authenticity was the same document as that provided to the complainant on September 13, 2011, whether it was the copy transmitted by Mr. Farje on June 21, 2012 (pp. 386 and 387), or whether indeed it was the same document.
Nonetheless, the Tribunal wishes to point out that this type of debate, which can have a serious impact on the credibility and integrity of one party or the other, could have been avoided by simply providing the complainant with a copy of the audit report on her post.
D.2 Infringement of the right of access to information
The complainant has said that in her view there were administrative and procedural irregularities during the reclassification process of the post she occupies, and that the irregular actions of the DHR with regard to the process and the handling of the audit report left her with the impression that that department was acting in bad faith by concealing information that the complainant requested on several occasions (p. 320). She alleges that she requested a copy of the audit report several times for the purposes she decided but that she was not given a copy until more than nine months, i.e., more than 270 days, after she first saw it, on September 16, 2011 (p. 319). The complainant therefore rejects the respondent’s allegations on page 149 that she had access to the report on the audit conducted by Micheline Mackin (p. 318).
This Tribunal observes that the complainant requested copies of the documents related to the audit of her post on repeated occasions:
On September 14, 2011, in an e-mail to Nubia Thornton of the DHR in which she requested the report to ascertain the reasons behind auditor Mackin’s recommendation (p. 51).
On September 22, 2011, in a note to the OAS Secretary General to request a hearing after learning of the results of the audit of her post (p. 53).
On October 20, 2011, in a memorandum to the DHR Director to accept the appointment of the Hearing Officer (p. 55).
On June 20, 2012, in an e-mail to the DHR Director in which she said that, if she was to take a decision on the agreement offer, she would need a copy of the audit report (p. 87).
According to the case file, the General Secretariat addressed the complainant’s request three times:
On September 14, 2011, when the DHR Director informed the DPE Director, Ricardo Graziano, by e-mail that the audit reports of the DPE staff members could not be distributed or reproduced (p. 51).
On September 15, 2011, when Mrs. Thornton contacted the complainant to propose that a meeting be set up for the latter to read the report (p. 48).
On October 17, 2011, when the Secretary General informed the complainant of the appointment of the Hearing Officer.
On each of these occasions, the argument the General Secretariat gave the complainant for refusing to provide a copy of her report was that the document could not be distributed or reproduced because of its confidential and sensitive nature. The respondent asserts that the complainant did have access to the audit report of the post she occupied and that, in keeping with a recommendation from the Reconsideration Committee, which incidentally was not binding on the GS/OAS, the complainant was given a copy of the report on the audit of her post conducted by auditor Mackin (pp. 371 and 372), when that was not in fact GS/OAS practice. The respondent notes that GS/OAS practice consists of arranging for a meeting with the incumbent of the post that was audited and to have the incumbent come, with his or her supervisor, to show them the audit report during however much time they need, in which they may take notes on it, but they are not provided with a photocopy of the report. Moreover, that is consistent with the recommendations of the United Nations classification experts (p. 372).
In this regard, the Tribunal CONSIDERS:
- With regard to the inherent confidentiality of the auditor’s report: The respondent has not provided the Tribunal in its briefs with a cogent explanation to help this body understand why it was considered that the information should be confidential in the sense that the complainant could not obtain a copy of it. The Tribunal understands that, while a document of this type should be confidential for all staff members of the Organization, it should be fully accessible to the staff member concerned since that person is directly affected by the audit results.
The argument for the report’s confidentiality with regard to the complainant is further weakened by the fact that the GS/OAS, after receiving the recommendations of the Reconsideration Committee, proposed an agreement to the complainant for a second audit, which clearly states, in paragraph 3, that the expert “shall submit the results directly and simultaneously to the staff member and a copy to the DHR Director.” (p. 85). The Tribunal does not understand how a document that was confidential for the GS/OAS from the outset, in that the staff member concerned was not allowed to obtain a copy of it, can be fully accessible to her at a later stage of the process.
- With regard to access to the audit report: The General Secretariat did of course give the complainant access to her audit report by allowing her to read it and copy it by hand, but this was limited access that constitutes a violation of her right to defense during the procedures envisaged in Chapter XII of the Staff Rules, given that anyone obliged to hand copy information of a technical and even numerical nature might be confused when doing so. An example of the negative consequences of the denial of copies was addressed earlier in section D.1 of this judgment. Not to mention the fact that the time it takes staff members to copy their reports by hand are work hours that the Organization is paying them for other purposes.
This practice of denying staff members copies of their reports also creates reasonable doubt in them concerning transparency and due process in the administrative hearing and reconsideration procedures conducted by the DHR, which ultimately leads staff members to reject conciliatory offers made by the administration and to file cases with this Tribunal. In fact, one of the Reconsideration Committee’s recommendations is that, for the sake of transparency and due process, the complainant should be given a copy of this report (p. 83).
The Tribunal observes (pp. 89 and 90) that it was not until June 21, 2012, that is, almost 10 months after the complainant received her audit results (September 13, 2011), that, following her repeated requests, the General Secretariat provided her with a copy of her report. As indicated by the DHR Director and by the respondent in his answer (p. 165), this copy of the report was provided to the complainant in response to a recommendation made by the Reconsideration Committee in its report (p.83). However, this body is surprised that the General Secretariat needed that recommendation from the Committee to send the complainant a copy of the report when this same Tribunal has already expressed its views on the denial of copies to the detriment of the complainant (Judgment 154/2008, “Juan Kassar v. Secretary General of the OAS”), declaring that practices of that type infringed on the complainant’s right of access to information and right to defense in the administrative proceedings prior to the filing of the case with the Tribunal, thus resulting in sanctions for the General Secretariat.
The decision not to provide documentation to staff members concerned should be based on pre-established grounds and should be made by a staff member who assumes responsibility for said decision in view of its possible consequences.
- With regard to the recommendations of classification experts on the practice of providing copies of audit reports: The respondent points out that providing copies of audit reports to the staff members concerned runs counter to the recommendations of post classification experts of the United Nations system, and presents as evidence e-mails in which three experts (Micheline Mackin, Susan Troccolo, and Nicolasa Vigil) were asked for their opinions in this regard (pp. 377-382). The Tribunal wishes to draw attention to the following excerpts from their replies:
Isabel Vigil: “We do not share the post rating with the incumbent at all” (p. 377).
Micheline Mackin: “… if your practice is to let the incumbent see the evaluations, it may not be prudent to do so. They will start doing their own and questioning the classifier’s ratings” (p. 379).
Susan Troccolo: “You are being more generous than most. The rating sheets are for HR only … Don’t do more than you are doing.” (p. 382).
The Administrative Tribunal observes that the declaration from the referred experts are not consistent with the actual practice initiated by the United Nations which, contrary to what they say, expressly establishes that staff members and their supervisors are to be given copies of the form or “worksheet” showing the results of the post audit. Indeed, Section 2 of the UN Secretariat “Administrative Instruction. System for the Classification of Posts” (ST/AI/1998/9) provides the following:
Procedure for classification or reclassification
2.4 A notice of the classification results, including the final ratings and/or comments on the basis of which the decision was taken, shall be sent to the requesting executive or administrative office, which will keep it in its records and provide a copy to the incumbent of the post. (emphasis added).
D.3 Alleged noncompliance with regulatory periods
The complainant maintains that the GS/OAS failed to comply with the following regulatory periods:
D.3.1 Time period for convening the post audit
Pursuant to Staff Rule 102.3 (c) (iii), “(w)ithin 90 days following its receipt of those documents [the supporting documents for requesting the post classification review], the Department of Human Resources shall issue an opinion on the possible consequences of the proposed assignment of duties and the requisites for making the assignment effective.”
As described in paragraphs 1 to 11 of section I above, a total of 18 months elapsed between the time the DPE Director requested a classification review of the complainant’s post (December 4, 2009) and the convocation of the audit (June 6, 2011).
According to paragraphs 4, 5, and 6 of Section I of this judgment, the reason given by the GS/OAS for delaying the convocation of post audits was related to the budgetary constraints affecting the Organization that year. The respondent states that once the suspension of post reclassifications was lifted, the GS/OAS acted diligently to address the 28 audit requests before it (p. 371).
The Tribunal has taken note of the information provided by the respondent on pages 175 to 192 to provide this body with an explanation of the financial difficulties faced by the Organization during the 2009-2011 period.
The complainant points out that the documents provided by the respondent in his answer to justify the Organization’s financial difficulties do not mention the need to suspend reclassifications, and that the suspension resulted in noncompliance with the time periods established in the General Standards to Govern the Operations of the General Secretariat of the OAS and the Staff Rules regarding post audits (p. 318). However, the Tribunal has noted the following in one of the documents appended by the respondent, specifically the Human Resources Management Plan, presented by the Secretariat for Administration and Finance to the Committee on Administrative and Budgetary Affairs (p. 192), dated March 17, 2011:
“As a result of budgetary decisions taken in 2010, the GS/OAS decided to delay actions required under the General Standards to conduct competitions for short-term staff seeking appointment as long-term staff and for reclassifications (grade increases).”
The Tribunal points out that the suspension of post reclassifications did indeed figure among the austerity measures adopted by the Organization to mitigate the financial crisis. It is not clear, however, in light of the evidence provided, if the financial difficulties were related solely to the program-budget which determines how the Regular Fund is to be used, or if such constraints also applied to other funds, so that the austerity measures adopted for the Regular Fund (such as the suspension of post audits) were also applicable to the Organization’s specific funds, the source of financing for the complainant’s post.
The Tribunal has not found enough information to rule on whether or not it was legitimate to suspend post classification review procedures even for cases in which the posts were financed by specific funds.
D.3.2 Time period for adopting a final decision
The complainant has noted in her complaint (p. 7) that, after the hearing and reconsideration procedures were completed, the Secretary General did not make the final decision called for once the Reconsideration Committee has submitted its report.
Staff Rule 112.7 (j) establishes the following:
“The Secretary General shall make his/her final decision within 28 days after the Committee has delivered its report to him/her. Within five working days following that final decision, the staff member concerned shall be so notified and shall also be sent a copy of the Committee's report. Except when the reconsideration refers to disciplinary measures, the Secretary General's decision and the Committee's report shall also be transmitted to the Staff Committee.”
As spelled out in paragraph 47 of section I above, the Secretary General took several decisions after receiving the report of the Reconsideration Committee, which were transmitted to the complainant in memorandum DHR/447/12 of June 22, 2012: to adopt the Committee’s recommendation to provide the complainant with a copy of the report and to propose that a new post audit be conducted by a different expert, the results of which would be final (pp. 93 and 94). Although the memorandum does not state that those were “final decisions,” the Tribunal considers them so, since the complainant was told that, as far as the General Secretariat was concerned, she had already exhausted the necessary prior administrative procedures for recourse to the OAS Administrative Tribunal.
If, under Rule 112.7 (j) cited above, the Secretary General has a period of 28 days after receipt of the Reconsideration Committee’s report to make a final decision (he received it on May 18, 2012, according to page 73), this means that the decision should have been taken by no later than June 15, 2012 (taking into account that Staff Rule 113.2 stipulates that the time periods refer to calendar days). In accordance with Staff Rule 112 (j), within five days after the decision, the Secretary General should have notified the complainant thereof. Note, however, that for purposes of this notification, the rule establishes that these are working days. Consequently, if the deadline for the decision was June 15, 2012, it is understood that the notification should have been made by June 22, 2012, which is precisely the date on which the complainant was informed of the General Secretariat’s decisions.
According with the aforementioned, the Tribunal does not consider that the General Secretariat failed to comply with the time period for make its final decision regarding the Reconsideration Committee’s recommendations.
The Administrative Tribunal of the Organization of American States, taking into account the factual and legal considerations set forth in the preceding paragraphs,
To validate, in accordance with Article VII.4 of its Statute and Article 21 of its Rules of Procedure, the report of auditor Héctor Rondón Fuentes, which appears in the case file on pages 364 to 366, and consequently to order the General Secretariat to immediately reclassify the complainant’s post from the P-2 to the P-3 level.
To order the retroactive payment of salary adjustments and benefits corresponding to the reclassified post from the date on which the post classification was first requested, namely, December 4, 2009 (p. 23).
To order that the payment referred to in paragraph 2 of this operative part be calculated taking into account the cost-of-living adjustment (COLA) from the date referred to in the preceding paragraph up to the month before the payment is made.
To order the General Secretariat to make an additional payment to the complainant as compensation for the infringement of due process norms and standards described in Section II.D.2 of this judgment. This amount shall be equivalent to one (1) month of the base salary of the complainant’s post at the reclassified level.
To order the General Secretariat to pay to the complainant procedural costs and attorney’s fees in an amount equivalent to one (1) month of the base salary of the complainant’s post at the reclassified level.
To recommend emphatically to the General Secretariat that it modify its policy and practices on access to information in that it allow staff members to see and obtain expeditiously copies of documents of direct concern to them.
Let notice be given.
Judge Homero Máximo Bibiloni
Judge Suzie D’Auvergne Judge Alma Montenegro de Fletcher
Judge Héctor E. Arce Judge Magali Rojas
Judge Andre Surena Mercedes Carrillo
Buenos Aires, Argentina, December 14, 2012